13.7
Duties Owed to the Firm

All lawyers owe a fiduciary duty to the firm, whether they are partners or associates. This means that no lawyer should exploit his or her position in the firm for personal benefit or interfere with the firm’s ability to conduct business. 

It is inappropriate for a departing lawyer to compete with the firm prior to giving notice of the lawyer’s departure. Departing lawyers may, however, take some preliminary steps to establish a new office before advising the firm, as this is consistent with the interests of the clients in facilitating an orderly transition of client files. For example, the departing lawyer may obtain office space, establish trust accounts, order office equipment and obtain financing. 

In contrast, the departing lawyer should not: 

  • entice clients and employees to leave the existing firm; 
  • surreptitiously remove client files without consent or knowledge of the firm or the clients; 
  • convert or misappropriate fees owed to the firm; 
  • mislead the firm about plans to leave, or conceal the departure; 
  • abandon the firm on short notice; 
  • use firm resources to copy files or client lists without permission, subject to the comments later in this module regarding the use of client information to develop a list of clients the departing lawyer may wish to contact, or to screen for conflicts arising from the lawyer’s transfer to a new firm; and 
  • take any action which may be detrimental to the interests of the firm or the clients, aside from the impact of the lawyer’s departure on the firm. 

Maintaining Professionalism 

Throughout the transition of leaving a firm, it is in everyone's interest to maintain the highest levels of professionalism during the transition. Tempers can flare when the stress of dealing with a departure is added to the normal stresses of practising law. Do not let it get personal. If you find you are losing objectivity, retain counsel to act as a buffer. 

Proactive Considerations for Firms 

A law firm should have a written agreement addressing what will happen to client matters in the event of a departure of a lawyer. It is also advisable to have a technology policy to address the management of a departing lawyer’s email account and access to the firm’s computer systems and data. Finally, any agreement should consider the ability of a departing lawyer to retain copies of work or precedents they have personally completed, as well as to clarify whether or not the lawyer may take copies of other firm precedents, documents, continuing professional development materials or other resources which the firm has created or paid to obtain.